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persuaded by the fact that an immediate-release rule might do damage to the garnishing creditor’s rights
without providing that creditor with adequate protection as may be required by bankruptcy law. Quoting In
re Giles, 271 B.R. 903 (Bankr. M.D. Pa. 2002), the court said the right of adequate protection “cannot be
rendered meaningless by an interpretation of § 362(a)(3) . . . that would compel turnover even before an
opportunity for the court’s granting adequate protection.”

National Bank Act Preempts Two State Laws, California Says

The National Bank Act, 12 U.S.C. § 1 et seq. (“NBA”), preempts a state statute governing disclosures
which must be made in connection with provision of credit-card “convenience checks,” the California
Supreme Court has held.

As regards national banks, the court said such disclosures are governed by federal banking
regulations and the state law improperly sought to place additional, and in some instances contradictory,
requirements upon such banks. Parks v. MBNA Am. Bank, 54 Cal. 4th 376 (2012).

“Congress intended national banks to have broad power to engage in the ‘business of banking’ by
‘loaning money on personal security’ (12 U.S.C. § 24, par. Seventh), and that power would be significantly
impaired if national banks had to comply with a diverse or duplicative patchwork of local disclosure
requirements,” the high court said.

In another case, California's intermediate Court of Appeals has held that the NBA preempts a state
law requiring a national bank, as a putative “foreign corporation,” to hold a certificate of authority from
state officials in order to utilize the substitute-service provisions of Iowa's long-arm statute. Wells Fargo
Bank v. Baker, 204 Cal. App. 4th 1063 (2012).

Reviewing a challenge to an Iowa judgment which had been registered for enforcement in California,
the Califorinia court rejected the debtor’s argument that the judgment was void because procured without
compliance with the Iowa statute. Finding that the statute impermissibly discriminated against national
banks in favor of local banks, the court said that “[e]ven the most limited aspects of state licensing
requirements have been preempted because they created impermissible conditions upon the authority of
a national bank to do business.”

For further background on the NBA, see Sharp Thinking Nos. 2 (December 2007) and 17 (February
2009).

HAMP Creates No Private Cause of Action, 11th Cir. Says

Another federal court of appeals has agreed with that portion of Wigod v. Wells Fargo Bank, N.A., 673
F.3d 547 (7th Cir. 2012), which holds that the Obama Administration’s Home Affordable Mortgage
Program (“HAMP”) does not contain a federal private right to sue.

However, Miller v. Chase Home Finance, LLC, 677 F.3d 1113 (11th Cir. 2012), ignores Wigod in
stating that the plaintiff failed to state viable claims under state law also. In Wigod, the 7th Circuit ruled
that a mortgagor could assert claims under state-law theories for a mortgagee’s failure to modify a
mortgage under HAMP as allegedly promised. See Sharp Thinking No. 61 (April 2012). In contrast to
Wigod, the 11th Circuit in Miller curtly rejected the plaintiff’s contract and promissory estoppel claims.

- John T. Hundley, Jhundley@lotsharp.com, 618-242-0246
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